APF Welding Pty Ltd v Amplified Contractors Pty Ltd

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FEDERAL COURT OF AUSTRALIA

APF Welding Pty Ltd v Amplified Contractors Pty Ltd [2022] FCA 991  

File number(s): TAD 13 of 2021
Judgment of: MCELWAINE J
Date of judgment: 26 August 2022
Catchwords: CONSUMER LAW – sale of business assets – claim for balance of money payable – cross-claim alleging misleading and deceptive conduct as inducing purchaser – misleading representations largely not made out on the evidence or not relied upon – applicant’s claims established saved for return of part of bond money held on trust pursuant to a lease of premises
Legislation: Competition and Consumer Act 2010 (Cth) Sch 2, Australian Consumer Law ss 4, 18, 20, 236, 237
Cases cited:

Addenbrooke Pty Ltd v Duncan (No 2) (2017) 348 ALR 1

Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14

Bofinger v Kingsway Group Ltd (2009) 239 CLR 269; [2009] HCA 44

Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25

Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31

Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No 2) (1987) 16 FCR 410

Equuscorp Pty Ltd v Glengallen Investments Pty Ltd (2004) 218 CLR 471; [2004] HCA 55

Hancock v Rinehart (2015) 106 ACSR 207; [2015] NSWSC 646

Harvard Nominees Pty Ltd v Tiller (2020) 282 FCR 530

Henville v Walker (2001) 206 CLR 459; [2001] HCA 52

Julstar Trading Pty Ltd v Hart Trading Pty Ltd [2014] FCAFC 151

Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; [2019] HCA 32

Potts v Miller (1940) 64 CLR 282

Sunbird plaza Pty Ltd v Maloney (1988) 166 CLR 245

Watson v Foxman (2000) 49 NSWLR 315

Division: General Division
Registry: Victoria
National Practice Area: Commercial and Corporations
Sub-area: Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs: 166
Date of hearing: 14-17 June 2022, 21 June 2022, 3 August 2022
Counsel for the Applicants: Ms C Scott
Solicitor for the Applicants: Conmoto Group Pty Ltd
Counsel for the Respondents: Ms P Sutherland
Solicitor for the Respondents: Paula Sutherland & Associates

ORDERS

TAD 13 of 2021
BETWEEN:

APF WELDING PTY LTD (ACN 082 179 191)

First Applicant

ANDREW FURMINGER

Second Applicant

AND:

AMPLIFIED CONTRACTORS PTY LTD (ACN 619 872 472)

First Respondent

ADAM BRAIN (and another named in the Schedule)

Second Respondent

AND BETWEEN:

AMPLIFIED CONTRACTORS PTY LTD (ACN 082 179 191) (and others named in the Schedule)

First Cross-Claimant

AND:

APF WELDING PTY LTD (ACN 082 179 191) (and another named in the Schedule)

First Cross-Respondent

ORDER MADE BY:

MCELWAINE J

DATE OF ORDER:

26 AUGUST 2022

THE COURT ORDERS THAT:

1.Furminger Superannuation Pty Ltd must account to Amplified Contractors Pty Ltd in the amount of $28,431.19;

2.The cross-claim is otherwise dismissed;

3.The proceeding is adjourned for further submissions consistent with these reasons as to the form of all further orders including whether judgment should be entered for specified sums in debt plus amounts…

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Details
Case
[2022] FCA 991
Decision Date

CaseChat Overview and Summary

The dispute in APF Welding Pty Ltd v Amplified Contractors Pty Ltd was adjudicated by the Federal Court of Australia, involving APF Welding Pty Ltd as the applicant and Amplified Contractors Pty Ltd as the respondent. The central issue revolved around the sale of business assets, with APF Welding claiming the balance of money payable under the sale agreement, while Amplified Contractors raised a cross-claim alleging misleading and deceptive conduct by APF Welding, which purportedly induced the purchase. The court was tasked with determining the validity of both the primary claim and the cross-claim, including the specific nature and extent of any misleading conduct, if any.

The legal issues before the court required a thorough examination of the terms of the sale agreement and the conduct of the parties leading up to and during the transaction. It was necessary to ascertain whether APF Welding had breached any consumer protection laws under the Australian Consumer Law by making misleading representations to Amplified Contractors. Additionally, the court had to determine the appropriate remedy if either party was found to have breached the terms of their agreement.

The court found that while APF Welding's claims for the balance of money payable were substantiated, the cross-claim regarding misleading and deceptive conduct was largely unsubstantiated. The evidence did not support many of the specific allegations made by Amplified Contractors, and it was not demonstrated that these alleged misrepresentations had influenced the decision to purchase. The court, therefore, dismissed the cross-claim. However, it did acknowledge that part of the bond money held on trust for the leased premises was to be returned to Amplified Contractors. The form of further orders, including interest and costs, was adjourned pending further submissions from the parties.

The court's orders included directing Furminger Superannuation Pty Ltd to account to Amplified Contractors Pty Ltd for $28,431.19, dismissing the cross-claim, and adjourning the proceedings to allow for further submissions on the form of all further orders, including the possibility of entering judgment for specified sums in debt, interest, and costs. The precise details of these orders were to be determined based on the additional submissions from the parties.

Orders

Orders of the court

1. Furminger Superannuation Pty Ltd must account to Amplified Contractors Pty Ltd in the amount of $28,431.19;

2. The cross-claim is otherwise dismissed;

3. The proceeding is adjourned for further submissions consistent with these reasons as to the form of all further orders including whether judgment should be entered for specified sums in debt plus amounts for interest upon the claim and as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Amplified also seeks unspecified and particularised amounts for interest together with legal costs on an indemnity basis. I did not receive any submissions from either counsel on these claims. Accordingly, I adjourn for further submissions the form of precise orders which are sought in relation to these claims.Conclusion For these reasons I make the following orders:1.Furminger Superannuation Pty Ltd must account to Amplified Contractors Pty Ltd in the amount of $28,431.19;2.The cross-claim is otherwise dismissed;3.The proceeding is adjourned for further submissions consistent with these reasons as to the form of all further orders including whether judgment should be entered for specified sums in debt plus amounts for interest upon the claim and as to costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.